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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB-00-IH-0414
) EB-00-IH-0504
ISOTHERMAL COMMUNITY COLLEGE ) FRN: 0003771193
) NAL Acct# 200432080008
Licensee of Noncommercial Educational Station )
Facility ID #29262
WNCW(FM), Spindale, North Carolina )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 13, 2003 Released: November
14, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Isothermal Community
College (``Isothermal''), licensee of noncommercial
educational Station WNCW(FM), Spindale, North Carolina,
apparently violated the Commission's rules relating to
licensee-conducted contests.1 Based on our review of the
facts and circumstances in this case, we conclude that
Isothermal is apparently liable for a forfeiture in the
amount of Four Thousand Dollars ($4,000.00) for violation of
the licensee-conducted contest rule, 47 C.F.R. § 73.1216.
II. BACKGROUND
2. The Commission received complaints that
Isothermal broadcast an on-air raffle on WNCW(FM) during the
period April 2 through 8, 2002, that failed to make clear
that consideration was not required to participate in the
contest and otherwise refrained from airing the contest's
rules, in violation of the licensee-conducted contest rule.2
One complainant further alleged that Isothermal has violated
47 C.F.R. § 73.3527(e)(9) regarding the maintenance of
WNCW(FM)'s public file's donor lists. Specifically, he
claimed that, during his April 18, 2002, visit to the
station, the public file's donor list was incomplete because
it included information current only through January 10,
2002.3 One complainant also alleged that Isothermal had
engaged in intimidating conduct by having its employee send
unsolicited and harassing e-mail traffic in reprisal for the
FCC complaint, contrary to Commission policy prohibiting
retaliatory conduct by licensees.4 Finally, two of the
complainants alleged that the licensee violated the
sponsorship identification rule, 47 C.F.R. § 73.1212, by
failing to identify that the station traded underwriting
acknowledgments for contest prizes.5 By letter dated
November 8, 2002, we inquired of Isothermal about these
allegations,6 and thereafter received its response.7
III. DISCUSSION
3. Under section 503(b)(1) of the Act, any
person who is determined by the Commission to have willfully
or repeatedly failed to comply with any provision of the Act
or any rule, regulation, or order issued by the Commission
shall be liable to the United States for a forfeiture
penalty.8 In order to impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability, the
notice must be received, and the person against whom the
notice has been issued must have an opportunity to show, in
writing, why no such forfeiture penalty should be imposed.9
The Commission will then issue a forfeiture if it finds by a
preponderance of the evidence that the person has violated
the Act or a Commission rule.10
4. Licensee-Conducted Contests. Several
complainants alleged that Isothermal conducted a broadcast
contest on WNCW(FM) during the period April 2 through 8,
2002, that violated the licensee-conducted contest rule, 47
C.F.R. § 73.1216, because the station failed to make regular
broadcast announcements setting forth the contest's rules.11
One complainant submitted several broadcast recordings
reflecting instances where station announcers invited
listeners to enter the contest.12 The complainants argue
that consideration was a contest element because WNCW(FM)
affirmatively required listeners to make membership pledges
or donations in order to participate.13
5. Isothermal admits that ``there was no regular
schedule for the broadcast of contest rules[,]'' but implies
that there was no need to do so because ``the rules were
very simple¾anyone who called and asked to be entered was
entered, whether or not the caller pledged membership.''14
Isothermal contends that the station's complete contest
rules were set forth and available to participants at
WNCW(FM)'s internet website.15
6. Section 73.1216 of the Commission's rules provides
that a licensee that broadcasts or advertises information
about a contest it conducts shall fully and accurately
disclose the material terms of the contest, and shall
conduct the contest substantially as announced or
advertised.16 No contest description shall be false,
misleading or deceptive with respect to any material term.17
In this case, it appears that Isothermal violated Section
73.1216 of the Commission's rules by not broadcasting
material terms of its on-air raffle during the time it was
conducted in April 2002. Isothermal's post-facto disclosure
of the contest rules on its web site two months after the
contest aired does not comply with the rule.18 The
Commission's rules clearly state that ``[t]he material terms
should be disclosed periodically by announcements broadcast
on the station conducting the contest.''19 The rules
state that, although disclosure by non-broadcast means (such
as making rules available at the stations and on the World
Wide Web) can be considered in determining whether adequate
disclosure has been made, the non-broadcast disclosures must
be ``[i]n addition to the required broadcast announcements .
. . .''20 Thus, although non-broadcast disclosures may
supplement broadcast announcements, they cannot act as a
substitute for broadcast announcements.21
7. Moreover, contrary to Isothermal's contention, the
recorded evidence and program transcripts submitted by the
complainants and the licensee, when viewed in their full
context, do not make clear that station pledges were not
required of callers who wished to participate in the
contest.22 Rather, listeners might reasonably conclude that
they would have to make membership pledges in order to be
entered into the contest drawing. Thus, the licensee
appears to have exacerbated the rule violation by failing to
make clear a specific material term about participating,
i.e., whether a station pledge was necessary.
8. Anti-Lottery Advertising Rule. With respect to
our query concerning the prohibition against lottery
advertising set forth in 18 U.S.C. § 1304 and 47 C.F.R. §
73.1211, Isothermal further denies that the contest
constituted a lottery because, it contends, the station did
not require listeners to provide consideration of any type
in order to participate.23 We do not find that the licensee
violated the anti-lottery advertising provisions of 18
U.S.C. § 130424 and 47 C.F.R. § 73.1211.25 Even if
consideration had been required to participate in the
contest, we note that North Carolina state law appears
generally to permit lotteries conducted by non-profit
organizations such as Isothermal.26 The broadcast promotion
of such state-permitted lotteries is allowed under the
exception for non-profit conducted lotteries listed in 47
C.F.R. § 73.1211(c)(4)(i).27
9. Station Public File. A complainant alleged that
Isothermal has violated 47 C.F.R. § 73.3527(e)(9) regarding
the maintenance of WNCW(FM)'s public file's donor lists.
Specifically, he claimed that during his April 18, 2002,
visit to the station, the public file's donor list was
incomplete because it included information current only
through January 10, 2002.28 In its response to our letter
of investigation, Isothermal contends that ``a list dated
April 5, 2002, was in the public file at that time,'' and
that the station's practice is to update the donor list
section of the file on a quarterly basis.29 In his reply
comments to Isothermal's response, the complainant disputes
the licensee's claim, and submits a copy of the public
file's donor list dated January 10, 2002, which he contends
was the most recent material contained in the public file's
pertinent section at the time of his station visit.30
10. There appears to be a genuine factual dispute as
to the contents of WNCW(FM)'s public file at the time of
the complainant's visit that we cannot resolve on the
current record. We note, however, that if the list were
accurate through January 10, instead of April 18, 2002, then
Isothermal's admitted practice of revising the public file's
donor list on only a quarterly basis would not represent
compliance with 47 C.F.R. § 73.3527(e)(9), because the rule
contemplates that the donor list be updated once a program
is broadcast.31 Noncommercial licensees should revise their
stations' donor lists on an ongoing basis, as they add new
donors to their roster of program supporters. In the
noncommercial service, the practice of regular donor list
revision is particularly important because, in some cases,
it is the only way by which the licensee's compliance with
the Commission's sponsorship-identification rule, 47 C.F.R.
§ 73.1212, may be ascertained.32 Thus, we urge Isothermal
to amend its practice to revise the station's public file
donor list when new program sponsors are added.33
11. Reprisals Threatened Against FCC
Complainants. One of the complainants alleged that
Isothermal engaged in intimidating conduct by having its
employee send unsolicited and harassing e-mail traffic in
reprisal for the FCC complaint, contrary to Commission
policy prohibiting retaliatory conduct by licensees.34 We
reject this allegation. A finding of ``[i]ntimidation or
harassment of witnesses requires threats of reprisals or
some other unnecessary and abusive conduct reasonably
calculated to dissuade a witness from continuing his or her
involvement in a proceeding.''35 In this case, the
complainant cites to ``annoying'' e-mail sent by the
Director of Administrative Services of Isothermal Community
College.36 The text of the complained-of e-mail messages,
however, make no threat of any kind, and do not appear to
have been calculated to intimidate the complainant or any
other party from making complaints to the FCC. Rather, the
e-mail messages appear to contain mostly benign
communications concerning station events. In the absence of
evidence of a calculated attempt to threaten or harass
complainants, we find no merit to this aspect of the
complaint.37
IV. PROPOSED FORFEITURE
12. We conclude that a monetary forfeiture should be
imposed against Isothermal. Based on the evidence before
us, we find that Isothermal conducted its April 2-8, 2002,
on-air raffle without making regular announcements setting
forth the material terms of the contest, in apparent willful
and repeated violation of Section 73.1216 of the
Commission's rules. The Commission's Forfeiture Policy
Statement sets a base forfeiture amount of $4,000 for a
violation of Section 73.1216 of the rules.38 Based upon our
review of all the pertinent factors as required by Section
503(b)(2)(D) of the Act, we believe that a $4,000 forfeiture
is appropriate.
V. ORDERING CLAUSES
13. ACCORDINGLY, IT IS ORDERED pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311 and 1.80 of the Commission's rules,39
Isothermal Community College is hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of Four
Thousand Dollars ($4,000) for willfully and repeatedly
violating Section 73.1216 of the Commission's rules.
14. IT IS FURTHER ORDERED, pursuant to Section 1.80
of the Commission's rules, that within thirty days of the
release of this Notice, Isothermal Community College SHALL
PAY to the United States the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
15. Payment of the forfeiture may be made by credit
card through the Commission's Credit and Debt Management
Center at (202) 418-1995 or by mailing a check or similar
instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should note the NAL/Acct. No. referenced above.
16. The response, if any, must be mailed to
Maureen F. Del Duca, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W, Room 3-B443, Washington DC
20554 and MUST INCLUDE the file number listed above.
17. Under the Small Business Paperwork Relief Act
of 2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002),
the FCC is engaged in a two-year tracking process regarding
the size of entities involved in forfeitures. If Isothermal
qualifies as a small entity and if it wishes to be treated
as a small entity for tracking purposes, it should so
certify to us within thirty (30) days of this NAL, either in
its response to the NAL or in a separate filing to be sent
to the Enforcement Bureau. Isothermal's certification
should indicate whether it, including Isothermals' parent
entity and its subsidiaries, if any, meet one of the
definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'')
set forth in Attachment A of this NAL. This information
will be used for tracking purposes only. Isothermal's
response or failure to respond to this question will have no
effect on its rights and responsibilities pursuant to
Section 503(b) of the Communications Act. If Isothermal has
questions regarding any of the information contained in
Attachment A, it should contact OCBO at (202) 418-0990.
18. IT IS ALSO ORDERED, that the complaints filed
in this matter ARE GRANTED to the extent indicated herein,
and ARE OTHERWISE DENIED, and the complaint proceeding IS
HEREBY TERMINATED.40
19. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to the licensee, Isothermal Community College, at P.O. Box
804, Spindale, North Carolina 28160, and to its counsel,
Steven Schaffer, Esq., Schwartz, Woods & Miller, at 1350
Connecticut Avenue, NW, Suite 300, Washington, DC 20036-
1717.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. § 73.1216.
2 See Letter from Complainant to the Chief, Investigations &
Hearings Division, Enforcement Bureau, dated April 18, 2002
(``Complaint #1''); Letter from Complainant to the Chief,
Investigations & Hearings Division, Enforcement Bureau,
dated April 8, 2002 (``Complaint #2''); Letter from
Complainant to the Chief, Investigations & Hearings
Division, Enforcement Bureau, dated April 9, 2002
(``Complaint #3''); Letter from Complainant to the Chief,
Investigations & Hearings Division, Enforcement Bureau,
dated April 23, 2002 (``Complaint #4'').
3 See Complaint #1.
4 See December 2-5, 2002, supplements to Complaint #4.
5 See Complaints # 1 and # 3. The complainants do not
suggest, however, that the contest prizes were given by the
underwriter to support any specific station program, which
would require sponsorship identification, only that they
were given to support the station's fundraising efforts
generally, which would not implicate the rule. Accordingly,
we find that this aspect of their complaints do not raise
any Commission rule compliance issue.
6 See Letter from the Chief, Investigations and Hearings
Division, Enforcement Bureau, to Isothermal Community
College, dated November 8, 2002. (``LOI''). Because of the
nature of the complaints, in the LOI, we also investigated
whether the contest also constituted a lottery prohibited by
Title 18 U.S.C. § 1304 and 47 C.F.R. § 73.1211.
7 See Letter from Isothermal Community College to the Chief,
Investigations and Hearings Division, Enforcement Bureau,
dated December 9, 2002 (``Isothermal's Response'').
8 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also
47 U.S.C. § 503(b)(1)(D)(forfeitures for violation of 18
U.S.C. § 1464). Section 312(f)(1) of the Act defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. 47 U.S.C. § 312(f)(1). The legislative
history to section 312(f)(1) of the Act clarifies that this
definition of willful applies to both sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess.
51 (1982), and the Commission has so interpreted the term in
the section 503(b) context. See, e.g., Application for
Review of Southern California Broadcasting Co., (MO&O), 6
FCC Rcd 4387, 4388 (1991) (``Southern California
Broadcasting Co.''). The Commission may also assess a
forfeiture for violations that are merely repeated, and not
willful. See, e.g., Callais Cablevision, Inc., Grand Isle,
Louisiana, Notice of Apparent Liability for Monetary
Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a Notice of
Apparent Liability for, inter alia, a cable television
operator's repeated signal leakage). ``Repeated'' merely
means that the act was committed or omitted more than once,
or lasts more than one day. Southern California
Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
9 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
10 See, e.g., SBC Communications, Inc., 17 FCC Rcd 7589,
7591, ¶ 4 (2002)(forfeiture paid).
11 Id.
12 See Complaint #4.
13 Id.
14 See Isothermal's Response at 2.
15 Id. at 2, 4.
16 47 C.F.R. § 73.1216.
17 Note 2 to the rule indicates that the time and manner of
disclosure of the material terms of a contest are within the
licensee's discretion. However, the obligation to disclose
the material terms arises at the time that the audience is
first told how to enter or participate and continues
thereafter. The material terms should be disclosed
periodically by announcements broadcast on the station
conducting the contest, but need not be enumerated each time
an announcement promoting the contest is broadcast.
Disclosure of material terms in a reasonable number of
announcements is sufficient. In addition to the required
broadcast announcements, disclosure of the material terms
may be made in a non-broadcast manner. See 47 C.F.R. §
73.1216 n.2.
18 See Isothermal's Response at 1. Isothermal represents
that the rules governing its contest were placed on its
website in June 2002.
19 47 C.F.R. § 73.1216 n.2 (emphasis added).
20 Id.
21 See, e.g., AK Media Group, Inc., 15 FCC Rcd 7541 (EB
2000).
22 See, e.g., Exhibit 3 to January 6, 2003, supplement to
Complaint #4, citing April 2 and 3, 2002, broadcasts:
Voice 1: ``We have accommodations in the Mount Vernon Suite
at the Morehead Inn on April 26 and 27. So, a great package
that we are going to give away tonight. And, if you want to
have a chance to win, all you have to do is call right now.
800-245-8870. Pledge your support¾automatically you are
entered, and we'll draw tonight.
Voice 2: ``There is no better way, no better time than
right now to call in your pledge of support at 1-800-245-
9970. If you need a little reminder of what a great disc
that concert for a Landmine Free World are, there are some
wonderful artists o there . . . among them, one of your
favorites, John Prine . . . .''
Voice 1: ``If anybody around here has been to the LEAF
Festival, they know that sometimes, oftentimes, there are no
passes left by the time you decide to go. So, if you want
to have a chance at picking up a couple passes, right now is
your chance to do it. If you give us a call at 1-800-245-
8870, you'll be entered into the raffle; if you've already
called us, you are entered into the raffle.''
Voice 2: ``That's right.''
Voice 1: ``If you've pledged online at WNCW.org, which you
can still do, if you are listening online, you are entered
into the raffle, and if you have mailed in your pledge, we
thank you from the bottom of our heart, and you are also
entered into the raffle.''
See also Isothermal's Response, citing April 3, 2002,
broadcast:
Voice 1: ``So you'll draw. You have a thing tomorrow.
You've got a thing the next day, a thing the next. We've
got raffle items happening every single day this week. . .
.
Who knows? You know, people who pledge. It basically
becomes, you know, basically a finite number of people.
It's people who pledge or call at (800) 245-8870. Make that
pledge and be entered into those drawings. You're just
basically supporting great music that you like to listen to,
that you enjoy having on your radio dial. It's all there
for you. You're making it possible. Make that telephone
ring. (800) 245-8870.''
23 Isothermal's Response at 2-3.
24 18 U.S.C. § 1304 provides that whoever broadcasts by
means of radio of television station for which a license is
required by any law of the United States, or whoever,
operation such station, knowingly permits the broadcasting
of, any advertisement of or information concerning any
lottery, gift enterprise, or similar scheme, offering prizes
dependent in whole or in part upon lot or chance, or any
list of the prizes drawn or awarded by means of any such
lottery, gift enterprise, or scheme, whether said list
contains any part or all of such prizes, shall be fined
under this title or imprisoned not more than one year, or
both.
25 47 C.F.R. § 73.1211 provides that, with certain
exceptions, no licensee of an AM, FM, television, or Class A
television station, shall broadcast any advertisement of or
information concerning any lottery, gift enterprise, or
similar scheme, offering prizes dependent in whole or in
part upon lot or chance. Citing the Supreme Court's
decision in Greater New Orleans Broadcasting Ass'n v. United
States, 119 S. Ct. 1923 (1999), the Commission no longer
enforces this prohibition against the truthful advertisement
of lawful casino gambling. See Casino Advertising
Enforcement Pending Disposition of Players International
Case, Public Notice, DA 99-2034 (MMB Sept. 30, 1999).
26 See North Carolina Statutes § 14-309.15.
27 47 C.F.R. § 73.1211(c)(4)(i) permits the advertisement or
conduct of a lottery, gift enterprise, or similar scheme,
other than a state-run lottery, that is authorized or not
otherwise prohibited by the state in which it is conducted
and which is conducted by a not-for-profit organization or a
governmental organization.
28 See Complaint #1.
29 See Isothermal's Response at 3.
30 See Letter from Complainant to the Chief, Investigations
& Hearings Division, Enforcement Bureau, dated December 28,
2002 (``Complainant #1's Reply'').
31 47 C.F.R. § 73.3527(e)(9) provides that the public file
shall contain: ``Donor Lists: The lists of donors
supporting specific programs. These lists shall be retained
for two years from the date of the broadcast of the specific
program supported.'' Isothermal's practice of revising the
file's donor list once every three months would comply with
the rule only if new program sponsors were added at the
conclusion of each quarter, and at no other time.
32 See Commission Policy Concerning the Noncommercial Nature
of Educational Broadcast Stations, 90 FCC 2d 895, 901 at ¶
11, n.18 (1982) (wherein the Commission granted
noncommercial licensees prospective sponsorship-
identification rule waivers to excuse them from the
obligation of identifying less substantial program sponsors
at the time of the broadcast of multiply-sponsored programs.
However, the Commission granted this relief on the condition
that noncommercial licensees would identify all unmentioned
sponsors through a ``complete donor list . . . maintained
and accessible through [the Public Broadcast Service, in the
case of such station affiliation], or the individual public
broadcast station itself'').
33 Having been admonished for violation of 47 C.F.R. §
73.3527 in the recent past, Isothermal should have been
sensitized to the importance of maintaining a current and
accurate public file. See In re Isothermal Community
College, 16 FCC Rcd 21360 (EB 2001)(MO&O), recon., 17 FCC
Rcd 22666 (EB 2002) (admonishing licensee for failure to
maintain an updated public file).
34 See December 2-5, 2002, supplements to Complaint #4.
35 Kaye-Smith Enterprises, 98 FCC 2d 675, 682 (Rev. Bd.
1984), recon. denied, 98 FCC 2d 670 (Rev. Bd. 1984), review
denied, FCC 85-192, released April 19, 1985, aff'd by
judgment sub nom. Hoffart v. FCC, 787 F.2d 675 (D.C. Cir.
1986), citing Chronicle Broadcasting Co., 19 FCC 2d 240, 244
(Rev. Bd. 1969) (subsequent history omitted).
36 See December 2-5, 2002, supplements to Complaint #4.
37 Cf. Patrick Henry, 69 FCC 2d 1305 (1978) (where the
Commission, concerned with the ``chilling'' effect licensee
reprisals might have on potential complainants, found a
substantial and material question of fact as to the
licensee's motivations for threatening and bringing a civil
suit against a complainant).
38 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Commission's Rules, 12 FCC
Rcd 17087, 17114 (1997), recon. denied 15 FCC Rcd 303
(1999); 47 C.F.R. § 1.80(b).
39 47 C.F.R. §§ 0.111, 0.311 and 1.80.
40 For purposes of the forfeiture proceeding initiated by
this NAL, Isothermal Community College shall be the only
party to the proceeding.